A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Friday, January 6, 2012

Pregnancy and Accommodation

The Globe published a story today, "Should pregnancy be considered a disability?" It addresses a live issue in the U.S., where pregnancy does not incur entitlements to accommodation, with appalling results. Professor Cox, of the University of Dayton, argues that pregnancy should be included in the Americans with Disabilities Act.

Prof. Cox found examples of women who lost their jobs because employers failed to offer special treatment, including a retail worker who drank water while working and thus violated store policy, and a police officer whose department would not allow her to perform lighter duties.

In Ontario, we don't have the same legal regime. Not the same issues, and not really the same question. Ontario law treats discrimination on the basis of pregnancy as sex discrimination. This approach makes sense in a certain light. After all, when you discriminate on the basis of pregnancy, you create hurdles that only women will ever have to deal with. But the consequences get awkward, meaning that light duties are for people with physical injuries, physical disabilities...and women. How exactly does an employer ask for a doctor's note proving that one has entitlement to accommodation on the basis of sex? "Please confirm that your patient is, in fact, a woman."

To be clear, pregnancy-related limitations do result in an entitlement to accommodation under Ontario law, but it's awkward, and the awkwardness really seems, in my mind, to arise from the fact that pregnancy-related limitations really are akin to disability. I've seen an argument about 'temporary disability'. I think I buy it, though this is awkward, too. Filling out typical disability forms asking when the accident occurred or symptoms first manifested seems not to fit with the framework of a pregnancy. Furthermore, quite often the limitations are not related to a physical inability to do something, or a risk of injury to oneself, but because performing certain duties might create risks for the foetus.

So...maybe the appropriate ground of comparison is family status?

The above is fairly academic. Ontario law is reasonably set that pregnancy-related limitations do trigger the accommodation provisions in the Human Rights Code. But not all employers know that, it seems. I have seen cases in which employers have raised every hurdle possible to pregnant women seeking accommodations, from telling them that there's no entitlement to accommodations, to ignoring requests for accommodations, to playing hardball on the implementation of accommodation measures. "That doctor's note isn't sufficient." "That [common sense] limitation isn't expressly set out in the FAF." So on, so forth.

I had a friend who got pregnant shortly after starting work at a clothing store. (Women's apparel - female manager, all female staff, all female customers.) As the pregnancy progressed, she began to have difficulty getting stock from the top shelves, and working long shifts without breaks. Her manager's response was essentially to suck it up. "I worked through my pregnancy." When she came in with a doctor's note saying that she needed reduced shifts, with several weeks left to go, her manager put her on unpaid sick leave and told her to apply for EI sick benefits.

Hard to believe that an employer - especially that employer - could be so insensitive, in breach of its Human Rights Code obligations. But if you read through the comments on the Globe's story, you'll see that a lot of the commenters share that same kind of insensitivity to human rights. It's shocking.

I wonder if having statutory provisions more expressly dealing with pregnancy might not only give pregnant women a more appropriate legal framework, but also promote a better awareness among employers of their own obligations.

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